ABC's Election Analyst blogs on the wonderful world of Australian Elections.

September 10, 2010

What Will Happen if there is an Early Election?

With the newly elected House of Representatives so evenly divided, there is a real possibility that the Gillard government will not last a full three years.

Holding only a minority of seats in the House, by-elections and resignations could see the Gillard government fall and be replaced by an Abbott government during the life of the current House.

Another possibility is that managing the House may become too difficult to manage for whoever is in government, and the Prime Minister of the day may request the Governor-General to issue writs for an early election.

I've been asked a number of times since the election what would happen to the Senate at an early election? The answer is that any early election would be a House only election, with the terms of the 72 State Senators unaffected.

Any early House election would be conducted under the same provisions of the Electoral Act as a normal House and half-Senate election, with a minimum 33 day campaign, three weeks between close of nominations and polling day, and full preferential voting. The only difference would be no Senate ballot paper, except for the ACT and Northern Territory for reasons explained below.

It would be possible to hold a double dissolution election for the House and all of the Senate, but that would require a deadlock on legislation between the House and the Senate. In the new Parliament, it is more likely that the government will have problems passing legislation through the House than it will in having to deal with Senate deadlocks.

The reason why any early election will be for the House only is because of the constitutionally fixed terms of Senators. The Senate can be broken into three groups:

the Senators elected in 2007 who began their six-year terms on 1 July 2008. A writ for an election for these Senators cannot be issued until after 1 July 2013.

The Senator elected on 21 August, whose six-year terms will begin on 1 July 2011. A new writ for an election for these Senators cannot be issued until after 1 July 2016.

The four Territory Senators, two from the ACT and two from the Northern Territory. The terms for these Senators are tied to terms of the House, and whenever writs for a House election are issued, writs to fill vacancies in the four Territory Senate seats would also be issued.

It is without question that a half-Senate election for Senators elected in 2007 cannot be held until after 1 July 2013.

I would also think it is against the terms of the Constitution for another half-Senate election to be held for those seats contested on 21 August. Section 13 of the constitution states that those Senators elected 'shall' take their seats on 1 July 2011. Any attempt to issue writs for a half-Senate before that date would be viewed as an attempt prevent those Senators taking seats to which they are constitutionally entitled.

After 1 July 2011, there is no question that a writ for those Senate seats cannot be issued until after 1 July 2016.

So any election before July 2013 will be for the House of Representatives plus the four Territory Senators only. Given it is control of the House that is in question in the current Parliament, it would be entirely appropriate for the House to face the electorate without the Senate.

There have been six previous occasions when House-only elections have been held.

The first House only election was in 1929. After being re-elected in November 1928, the Bruce Coalition government was defeated by defecting backbenchers on a vital piece of government legislation. As the opposition Labor Party could not have formed government in the circumstances, the Governor-General agreed to Bruce's request for a House only election for October 1929. The government was defeated.

The second House only election was in 1954. The April 1951 double dissolution had reset the Senate terms so a half-Senate election was required by mid-1953. Not wanting a House election at that time, Menzies called a half-Senate election for May 1953, not holding the House election until May 1954. Menzies subsequently justified an early House election in conjunction with a December 1955 half-Senate election to bring the terms of the two chambers back into line, but the real reason was to take advantage of political disarray in the Labor opposition.

There were four House only elections held in 1963, 1966, 1969 and 1972, with intervening half-Senate elections in 1964, 1967 and 1970. These were caused by Menzies' narrow victory at the 1961 election. The constitution prevented him holding a half-Senate election until after July 1964, but the narrow House majority allowed Menzies to seize an opportunity for a separate House election in November 1963 at a time when the Labor opposition was divided. The two Houses did not come back into alignment until 1974, when Gough Whitlam cancelled a scheduled half-Senate election in favour of calling a double dissolution.

A Governor-General can issue writs for a House election at any time on the advice of a Prime Minister who has the confidence of the House. As was shown by the 1929 election, writs for an early election can also be issued in circumstances where a Prime Minister has lost confidence but where no alternative government could be formed.

If in the next year the Gillard government was defeated on a matter that it viewed as being one of confidence, Prime Minister Gillard would have the right to request an early House election. However, having lost the confidence of the House so early in a term, the Governor-General would not have to accept the Prime Minister's advice if the House had given some indication of being willing to support an Abbott Coalition government. In those circumstances, the Governor-General may decline to call an early election and simply commission a new government. This was how John Curtin replaced Arthur Fadden as Prime Minister in 1941 without an election.

If the Gillard government temporarily lost control of the House, for instance by the calling of a by-election in a government seat, the Prime Minister could request the Governor-General to prorogue the Parliament, effectively suspending sittings, pending the resolution of the by-election. There are precedents in New South Wales, Tasmania and Canada for Governor to grant such a request in situations where a government has temporarily lost control of the House.

An early election could be brought on in circumstances where the government loses a vote it treats as a matter of confidence, but where no alternative government is possible.

For instance, it has been suggested the Greens could back a bill implementing the Coalition's Parental Leave Scheme. Such a bill would require a redirection of the crown's funds, and the Gillard government could argue such legislation is equivalent to testing the government's control of supply and appropriation. Treating such a bill as a matter of confidence could trigger an early election, or if the House persisted, see a new Prime Minister appointed.

A more complex case comes with double dissolutions. The test for a double dissolution is simply that a bill passed by the House has been rejected, failed to pass or been unacceptably amended by the Senate, and after a period of three months, again fails at the Senate hurdle. In those circumstances, the Prime Minister has the right to request a double dissolution for the House and for all Senate seats.

In theory, any bill that meets these requirements can be put to a double dissolution. However, a request made by a Prime Minister who did not have the confidence for the House could cause the Governor-General to decline the request, as they would a normal election request.

Precedent is mudied here by the 1975 constitutional crisis, a precedent few constitutionalists like to refer to except as a last resort. The dismissal of Prime Minister Gough Whitlam, who had the confidence of the House, in favour of Malcolm Fraser, who advised for a double dissolution before confidence in him could be tested, will always be controversial.

The fact Fraser used Whitlam government measures that his party had opposed in the Senate also raised the question as to whether the measures were of importance to the Prime Minister's program. Fraser's victory at the subsequent election with a majority in both houses meant the legislative implications of the 1975 double dissolution were never tested. In terms of precedent, the 1975 constitutional crisis should always be treated as a special case.

In granting a double dissolution, the Governor General has the right to assess whether a deadlock exists. If a double dissolution trigger was gained before July 2011, it would seem unlikely that any request for a double dissolution would be granted without the bill also being put to the new Senate after 1 July 2011.

A double dissolution couldn't be granted before July 2011 because it would terminate the terms of Senators yet to take their seats. The justification of a double dissolution is that a deadlock exists with Senators, but issuing writs for a double dissolution would terminate the terms of 36 Senators who had not taken their seats as so could not be seen as deadlocked with the House.

On my reading of the Constitution, the deadlock provisions must relate to the new Senate taking its place after 1 July 2011. Trying to call a double dissolution on the old Senate numbers would deny any Senator-elect their seat. The terms of Senators can only be broken in the case of a deadlock, but there would be no case that a deadlock exists with Senators yet to take their seat. Any attempt to call a double dissolution based on a deadlock with the pre-July 2011 Senate would be certain to see Senators attempt a High Court injunction against the issuing of writs for a double dissolution election.

So in summary, if the Gillard Labor government finds itself at odds with the new House of Representatives, the odds are high that we could see either a baton change to an Abbott Coalition government, or the return to the polls for another election.

Any election held before July 2013 will almost certainly be a House-only election, in conjunction with an election for the four Territory Senate seats.

Comments

"A Governor-General can issue writs for a House election at any time on the advice of a Prime Minister who has the confidence of the House"

Antony, you've expressed this view before - that the GG can only dismiss the house on advice - and I'm curious as to where that view comes from.

Section 28 of the Constitution says
"Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General."
with no reference to the 'Governor-General in Council', or to any requirement for there to be a trigger or advice.

I assume you have a better understanding that I do. Are you able to provide (or direct me to) an explanation?

Thanks

COMMENT: There is non doubt that if on a whim the Governor-General decided to dissolve the House of Representatives, the actual wording of the Constitution would allow it. This would create a problem though, as within 10 days writs must be issued, and this must be done by the Governor-General in Council, which creates all sorts of problems if the Governor-General had dissolved the House without advice but then needs advice to issue the writs.

It is true that the Constitution does refer to the Governor-General as an office in some sections and 'in Council' at others. But as Quick and Garran observed in their annotated Constitution, "the distinction between these two classes of powers and functions is historical and technical rather than practical and substantial". Quick and Garran noted the distinction was included in the constitution by the framers because they drew a distinction between traditional prerogative powers of the crown and those that had been conferred by statute.

The reason the Governor-General acts on advice is because the principles of responsible government require that the Governor-General act on ministerial advice in exercising constitutional powers, those Ministers being accountable to Parliament for such advice.

The reserve power inferred from Section 28 is that the Governor-General may decline advice to dissolve Parliament under the principles of responsible government because a Prime Minister does not have the confidence of the House. It would have to be an extra-ordinary exercise of reserve powers to do the reverse and dissolve the House without advice.

A changeover to the Coalition could be a blessing in disguise for Labor. We would see the same old Libs, work choices and new taxes on ordinary Australians on display. The Greens will not be impressed.

COMMENT: I don't think any government would give up power unless it had to.

Interestingly though, the government itself could force a double dissolution, by having its own Senators block legislation the House had passed.

This would kill the government through its own trickery though. But an interesting thought.

COMMENT: No it couldn't. The Governor-General must be satisfied that a deadlock exists and has the power to decide that themselves. The government blocking its own legislation to create a deadlock would not pass this test.

Thank you Antony for all of your posts throughout this saga. I know all the election junkies amongst us hope it won't be three years till we hear from you again. Is there any chance that either SA or Tassie will move their fixed State election dates? Because the last SA election just wasn't right without you on the ABC. Why did Tassie get you? Whatever it was, we can change, we promise!

On the present topic, Whitlam has said he'd intended to ask the G-G for a half senate election at the meeting where he was dismissed in 1975. Assuming for a moment that the G-G hadn't had other plans, was that advice even permissible? It seems too soon after the double dissolution.

COMMENT: The 1974 double dissolution had back-dated Senate terms to July 1973 and required a half-Senate election to be held before June 1976. In addition, legislation creating the four Territory Senate seats had passed. Whitlam was going to recommend the issue of writs for the four Territory seats and half the Senate in the hope this would pressure the Senate to back down in blocking supply. Governor General Kerr withdrew his commission as Prime Minister before he could offer the advice, though there are subtle differences between the accounts of the participants.

As far as legislation is concerned. If the Liberals and the Greens use their numbers in the lower house to pass a bill, for example Paid Parental Leave Scheme, how will it be implemented? I understand the Bill document can be written by private members, but the Opposition nor the Greens have access to the Public Service.

COMMENT: The problem is more to do with the appropriation of funds than the legislation itself.

A double dissolution is not as attractive option as many think. It does not guarantee more senate seats to the Government so even a new senate may still block the legislation. Where the real power comes is in the subsequent joint sitting, where the senate and house of reps sit as one. That is where, provided the Government has sufficient numbers in the House of Reps it can overcome any disparity of numbers in the senate (number of senators = 1/2 number in house of reps). The Government does not have enough of a lead to overcome their short numbers in the senate (in fact, it does not even have a 'lead' in the house of reps) so would have to pick up a lot of seats in the election to have this method work.

The final complication is that the legislation has to be carefully worded to be suitable for a double dissolution. Many clause used to enact the 'starting date' of legislation is found in regulations. These regulations are passed after the initial legislation and can equally be blocked. So even if a Government was able to pass legislation at a post double dissolution joint sitting it may never be able to implement the legislation as subsequent regulations needed to activate it may be blocked by a hostile senate.

Thanks again for your comments Anthony. A thoroughly professional performance.

Antony, say the Coalition introduced legislation that was passed in the House with the support of (say) the conservative independents but which was then blocked in the Senate by Labor and the Greens (after July 1 next year). If the same piece of legislation was again passed in the House and blocked in the Senate within the specified period of time, would the Governor-General be able to dissolve both houses?

Does the Governor-General have to be advised by the Prime Minister before this happens? Obviously Gillard would not advise this if it were the Coalition trying to get something through.

COMMENT: The Governor-General has to be advised. Sir John Kerr did not initiate the double dissolution in 1975, he appointed Malcolm Fraser as Prime Minister who offered the advice.

Or, could it be possible, that if that happens, that Gillard would ask the Governor-General to prorogue Parliament until the new senators take their seats, then try again?

It's been done in Canada when the Liberals + NDP + Quebec Bloc rejected amendments in a fiscal update presented to the Canadian House of Commons.

The Liberals and NDP had an accord to remove PM Stephen Harper from power by forming a coalition government, and gained the blessings of the Quebecers who held the balance of power.

Eventually, however, Harper advised the Governor-General, Michaëlle Jean to prorogue Parliament to delay any possible change of government (the Conservatives were a minority government, like ALP is now), and Jean did so, for 2 months [Dec 2 '08 - Jan 26 '09].

So, what's the likelihood of this, given that the positions of the Conservatives in Canada and the ALP are pretty similar, in terms of numbers?

COMMENT: Prorogation could be used for a few weeks, say while a by-election took place, but not for months on end. Prorogation may not be required anyway, as the House itself may move a motion suspending sittings until after any by-election. A sensible opposition would actually offer a pair to any missing member to avoid sittings being suspended. An attempt by an opposition to sieze office pending by-elections, with no guarantee they would survive in office once the by-elections were out of the way, would probably require prorogation.

The example I know of is the first Labor government in NSW, which had only a narrow majority and faced a crisis in 1911 when two MPs resigned on a matter of policy. The opposition immediately moved to try and replace the government while Labor was short two MPs. The Lieutenant-Governor declined a request to prorogue, probably correctly as the government was trying to get the adjournment the Assembly was unlikely to grant. When advice to prorogue was rejected, Acting Premier Holman handed back the government's commission and also caused the Labor Speaker to resign. This put the opposition in the position of having to provide a Speaker, which meant if it took office it would lose a vote of confidence and Holman would have to be re-commissioned when he would again offer advice to prorogue. Rather than go through this charade, the Lieutenant-Governor agreed to prorogue pending the by-elections.

The Canadian example was over the traditional Christmas break. While in recess the agreement between the opposition parties to bring down the government broke apart.

Antony, could there be any utility for the opposition in manufacturing a double dissolution trigger?

COMMENT: Only if they thought they were going to assume office later in this term. Only a Prime Minister can advise a Governor-General to call a double dissolution. Even then the Governor-General would want legal advice on how to proceed. I don't think anyone will be trying to get a double dissolution in the current parliament. The issue will always be the numbers in the House, not the Senate.

It has been suggested the Greens could back a bill implementing the Coalition's Parental Leave Scheme, doesn't mean it is the truth and like many other suggestions which turn out not to be the truth, like Abbott had more seats, Abbott to be PM etc etc

Presumably, the constraints on initiating either Senate and/or House elections would apply equally to a Abbott-led government as to a Gillard-led one. It is therefore no more likely that he could secure another House election before July 2011 any more than Gillard could.

However, had Abbott been able to secure the support of the Independents in the House (and so form government) and that of Fielding in the Senate (and so also have a majority there), he could have been assured of having legislation passed in both houses from now until July 2011, before he would be facing a potentially hostile Senate.

That must make wresting the government from Labor over the next few months an urgent priority, and will presumably make for 'interesting times'. Hang on for the ride!

I am interested in the position of the Territory Senators. Why are they re-elected at every HR election instead of having six year fixed terms like those of the states. If the answer is because there are only two per Territory, then why aren't there more? As a Canberran I feel under-represented in the Senate when compared with say Tasmanians. If the ACT had six Senators with three up at each half-Senate election, this would seem fairer. And the results could be quite interesting!

COMMENT: The Commonwealth Parliament has the power to deterrmine the representation of the Territories under terms it thinks appropriate. The Territory Senators have their current numbers and terms because the Commonwealth Parliament so determined.

Or a Labor-Greens Senate could block supply if Tony Abbott becomes PM... then Quentin Bryce can dismiss Abbott and re-appoint Gillard... if she wanted to emulate Kerr. But then Gillard would need to find the confidence of the house and advise for a double dissolution. Some time in 2012-13? What do you reckon?

COMMENT: If the Coalition become the government, how they deal with the Greens in the Senate will be an issue. However, everyone is too focussed on the Senate and double dissolutions when the real issue is how government will work with the House of Representatives.

I'm sure you're right, but I still feel it more likely that a GG would refuse s DD request than it is that the HC would issue a writ to stop a DD election after a GG had agreed to a PM request.

Correct me if I'm wrong but only 2 of the 20 private members bill that have become law occurred in a hung parliament, both pre-Fusion. And these were both sponsored by the government?

My Q is, do you think the GG is advised by the executive or parliament in her legislative functions? What can the executive properly advise if legislation was passed against its wishes (but upon which it did not hang confidence)?

COMMENT: I don't think a PM would even ask for a double dissolution with a dodgy trigger, let alone have the Governor General decline it or the matter get to the High Court. I went through all that detail after reading numerous blog suggestions about arranging double dissolution triggers. If there is going to be an early election, I believe it will be a House only election.

I have no idea on your question about private members bills, and on the second matter, I'm not a constitutional lawyer.

The real power of government is in taxing and spending as you have pointed out Antony. No bill imposing taxation or requiring spending can pass the House without a recommendation from the Governor-General (s.56). The Governer-General will only make such a recommendation on the advice of her Ministers. So the coalition and the greens can say what ever they want but since they are not in Government, they cannot pass bills requiring spending. So it is all posturing on their part. Of course, the greens and coalition in the Senate can always act as spoilers and block bills passed by the House, nothing new there. Also, the Senate cannot initiate bills imposing taxation or spending money - that remains the perogative of the Government. The other issue is that the Governer-General is not obliged to give assent to any bill passed by both houses. Presumably, if such a bill was passed against the Government's wishes, the PM would advise the GG to withold assent, or send the bill back to parliament with amendments proposed by the Government. Antony - are you aware of this situation ever occurring ? It certainly would be an interesting scenario.

Hi, Antony
A Double-Dissolution is quite within possibility, given the makeup of the new parliament and the likelihood of failed bills in the Reps.
It might even involve the Governor-General acting "without advice".
Dismissal of a government has happened once at the Federal level, and so has a Joint Sitting. There is as much precedent for a Dismissal as there is for a Joint Sitting.
Really, anything can happen now.

COMMENT: Come off it! You can't get a double dissolution from a failed bill in the House of Reps. It has to be a dispute between the two chambers over a period of several months.

The current issue is whether the government can last in the House of Representatives. If it is so unstable, I think it is highly unlikely to last long enough to be able to produce a trigger which would allow a double dissolution, let alone an extraordinary use of reserve powers to achieve it.

If a constitutional issue arises in the current parliament, it is more likely to be over the Gillard government losing its majority, and whether that should involve a baton change of government or an early House election.

Given the poor past records of attendance at divisions by the Rural Independents, the Labor whips will be hard pressed to get their two into the house (even into Canberra) along with Wilkie and Band to support Labor when divisions are called. Similarly, the Coalition whips might have difficulty getting Katter to front up. He still has considerable potential power by declining to vote with either side.

The government may be defeated quite often in regular business but what is considered to be a defeat of the government on a Confidence Issue may well become controversial.

Antony, what are regarded as issues of confidence that, if lost by the government require the resignation of the Prime Minister? And, if doubt exists, who decides - the GG?

Antony, I'm a Canadian who has been following this election and your commentary with particular fascination. True coalitions (where the cabinet has ministers from multiple parties) are rare in Canada. In minority situations, they tend to form minority governments, with the government depending on one of the other parties to get legislation passed on a case-by-case basis.

It seems to me that the current situation in Australia is much more fragile than in the UK or Canada. In the UK, Cameron only needed to do a deal with one other person (Clegg) to form a coalition governnment. In the Canadian federal parliament, the Conservative government has three potential partners to dance with on each bill. It's only if all 3 oppostion parties vote against a bill that they risk being defeated (assuming it is a confidence bill). So far, they have managed to get at least one of the other parties on side (often by playing them off against each other).

In the currently situation in Australia, there was no third party that had enough seats to put either Gillard or Abbott over the top. Gillard had to do a deal with 4 different people and any one of them could bolt at any time, With the exception of the Green, none are subject to party discipline. Even if Abbott took over at some point due to defections or byelections, his government too would be inherently unstable. I think it is highly probable that there would be an early House election in 12 to 18 months.

I agree that an early election is more likely in the present circumstances than it would be in more common circumstances. But it's still not very likely.

There will be a lot more pressure on members not to resign (and precipitate a by-election) than there would normally be. And even if a by-election does happen in a seat held by a government supporter (a by-election in a seat held by an opposition supporter can't directly change anything), it will have the atmosphere of a general election rather than a normal by-election because everybody, including the voters, will understand the fate of the government to be directly at stake. By definition, a by-election in a Labor-held seat would be a by-election in a seat where a majority of the voters in the August election had voted for a Labor government, so the odds are good that they would continue that stance to give the government a chance. The apocalypse scenario for the government would be a by-election in Lyne or New England, and even then there's at least some chance that the former Independent member's supporters would put forward a popular local candidate committed to maintaing the departing member's stance.

The other apocalypse scenario for the government would be the loss of the support of Windsor and/or Oakeshott. But given what they've said about the importance of stability, that seems unlikely unless they both agree that there are extraordinary circumstances which justify them in bringing the government down and switching their support to the opposition, in which case the probable result would be a switch to a Coalition minority government without a new election. That would follow the most recent historical precedent in Federal politics, from 1941, when Coles and Wilson explicitly acted together to bring down the Coalition government and support the formation of a Labor one.

Lang White writes: "The Governer-General will only make such a recommendation on the advice of her Ministers."

Say there was a Bill (*not* requiring extra-Budgetary spending) that originated from a non-Government MP in either House. Assume it passes through Parliament without government support, since the ALP has a majority in neither house. It is now for the PM to advise the GG to assent to the Act. The PM refuses.

1. May anyone else advise the GG to give Royal Assent?
2. May the GG give Assent without advice, since it's clearly the will of the Parliament?

COMMENT: (1) No, only the Prime Minister can offer advice.
(2) No. The Governor-General acts on advice, that advice offered by the Prime Minister with the confidence of the House. If the Parliament wants the bill to have vice-regal assent, it either requests the Prime Minister offer that advice to the Governor-General, or changes the Prime Minister to one who will offer that advice.

Hi Antony,
You state that the PM who has the confidence of the house can advise the GG to call an early house election. Does the PM need to demonstrate that they have the confidence on this issue? Windsor and Oakeshott in particular have placed great value on stability and the desire to see parliament run its full term, I'm wondering if their promise of confidence has actually given the PM the theoretical ability to call an election without further reference to the parliament.

Fascinating article, thank you very much. Also enjoy reading all your replies to the comments. Hope that you see and respond to this one.

You mention the Bruce government's loss of a vote in 1929 that triggered advice for an election in that year. You talk of it in terms of a loss of confidence. As I understand it, the government lost a vote on legislation with respect to industrial relations; they did not lose a no-confidence motion in the strict sense.

You thus cite the 1929 situation as authority for the proposition: "An early election could be brought on in circumstances where the government loses a vote it treats as a matter of confidence, but where no alternative government is possible."

I am interested as to whether this distinction - i.e. between an actual loss of confidence and simply a loss of a vote on legislation considered important to the government - arises from any situation other than 1929? In particular, is it the Prime Minister or Governor-General who decides whether the vote is effectively a loss of confidence? Your article clearly suggests the former but it would seem to me that the Governor-General would need to retain some power to reject such advice lest the Government of the day use such precedent disingenuously, .e.g to avoid an actual confidence motion that could result in a change of government without an election.

Amendment of the appropriation bills or the Address-in-reply are viewed as direct attacks on the government's ability to govern. So is defeat on adjournment, as this implies the government has lost control of the sittings of the house. Any other vote that the government chooses to view as a want of confidence by the House can be treated that way, including defeat on major legislation. In those cases it is up to the government to decide if the defeat is enough to warrant recommending an election.

Just another point re the 1975 Constitutional Crisis, a half senate election under the rules at the time would have meant the immediate replacement of the two appointed independants that gave the Libs the majority to block supply, as well as the 4 Territory senators. It's possible that a half senate election would have solved the deadlock in that fashion.

The above scenario of government changing hands without an election also happened to Wayne Goss in QLD in 1996. The result was 2 and a half years of Rob Borbidge and the Nationals and a reminder of why they were booted out in 1989 in the first place.

The prorouge option though as you mention, was used in Canada recently, was portrayed by the Canadian press as a government being chicken. I'd expect the same thing would happen here in Aus.

Antony, I think you have got the constitutionality of a double dissolution prior to July 2011 fundamentally wrong. There is nothing in section 57 that precludes such a double dissolution.

Further, the contention of the constitution "denying" a senator-elect's "right" is wrong. A senator-elect does not have a right superior to the provisions of the constitution.

However, more practically, the double dissolution election would relate to Senate seats expiring June 2011 and June 2014. Hence, query whether there is really much practical point in having an "early" double dissolution election because half of the "new" State-derived senators from the double dissolution election would relinquish their seats in July 2011 to those senators elected in the 21/8/10 election.

COMMENT: No, you've got the double dissolution provision wrong because the Senate terms are reset. The double dissolution would work by terminating the terms of the 72 current state Senators, AND the 36 that are yet to take their seats. The double dissolution dissolves the Senate and elects Senators to new 3 and 6 year terms backdated to the previous July, not to the balance of the current term. The 36 Senators elected on 21 August are entitled by the Constitution to take their seats on 1 July next year and if their terms are going to be terminated by a double dissolution, it would have to be on legislation that the new Senators have voted on. I know Section 57 does not mention this, but the meaning of deadlock must be read in conjunction with other provisions of the Constitution (eg Section 13) that provide the Senate with fixed terms. How can you terminate the terms of 36 Senators claiming a legislative deadlock when none of those 36 Senators have had the right to vote on the legislation?

I note that Warren Truss continues to state that the Nationals recorded their best vote since the Second World War. I cannot see a basis for this in terms of percentage of first preferences. (On the other hand, the Greens could clearly claim a record vote on that basis.) Any comparison on seats won would have to take account of the increases in total seat numbers in the House of Reps and the Truss assertions are therefore questionable. Of course, Mr Truss also includes the vote in O'Connor as part of the Nationals' total, a doubtful assumption given that the successful WA Greens candidate there defeated a sitting coalition MHR and is sitting on the cross benches.

COMMENT: He's including LNP candidates in Queensland who are sitting with the National Party, and the WA Nationals candidates.

Having done work in the past on compiling election results, there is always difficulty in how to present results. Should tables be presented representing accumulations of votes based on the party affiliations at candidate nomination, or should they be adjusted to take account of how candidates took their seats in Parliament. As we have seen with the WA National Party and the LNP, after the event you can find people want the election result altered to match a new reality.

also - do you think it is accurate when reporters (including on the ABC) says of the PM - "Australia's first democratically elected famale PM" or "Australia's first female PM elected in her own right" or similar?

COMMENT: Depends what you mean by elected. Legally Prime Ministers aren't elected, either by the public or by the parliament. But the phrase is often used to refer to a Prime Minister who has faced an election, as opposed to a Prime Minister who hasn't.

Whenever there is another election, early or full term, there will be one continuing feature from the last one - a small number of electors in the smaller electorates (like those found in Tas, NT and parts of Qld) will have a larger impact on the outcome than electors in the majority of larger electorates (eg NSW, Vic, and not to mention the two bulging electorates in the ACT). Far fewer people need to change their vote in a 60,000 voter electorate than in a 120,000 voter electorate to change the sitting member.

What would be wrong with establishing an independent electorate size target for the AEC that operated in a similar way to the inflation band target for the Reserve Bank? Get the AEC to draw the boundaries to size all electorates between 85,000 and 100,000 voters and let electorates cross State / Territory borders if needed. There is one obvious drawback with this scheme in that it makes it harder to count Senate votes, but surely this could be overcome in the name of fairer values for the votes of all electors.

COMMENT: Everything you say is possible, but it requires a referendum to change to the Constitution, a document that has proved very difficult to change since 1901.

Great analysis - especially for one who professes not to be a constitutional lawyer!

One thing confused me though: why do you refer to a by-election in a Government-held seat resulting in a temporary loss of control for the Government? At present, the Government notionally controls the House 76-74. After the election of the Speaker, presumably a Labor MP, and the pairing of that Speaker by an Opposition member (under the Oakeshott-Albanese-Pyne Deal), the Government will control the House 75-73. A by-election in a Government-held seat would reduce this numerical control to 74-73 for the duration of the by-election campaign, but the Government would still have a majority. Even if the Opposition were to sieze the opportunity of this by-election to renege on their pairing deal, the numbers in the House would only come to 74-74, engaging the Speaker's casting vote (Constitution Act s 40) which would maintain the Government's control of the House during the by-election campaign.

COMMENT: I think the numbers will be more fluid than to say the government will have 76 seats. To say that presumes every member turns up for divisions, incuding the four non-Labor members included to achieve 76 seats. If the government lost a seat at a by-election, I doubt the idea of an Opposition MP pairing the Speaker would survive. All pairing arrangements are done as a matter of courtesy and cannot be enforced under standing orders as every MP has the constitutional right to a deliberative vote, except for the Speaker.

Interesting - the instability of the government makes many think that we're likely to be at the polls before the 3 years is up.

But wasn't the independents' main reason for choosing Gillard because she'd be more stable and less likely to want to go to an election before full term. That puts the independents on shaking ground because Gillard would show little loyalty to them after an election if she didn't need them - assuming they make it back into the parliament after an election - a big assumption knowing they are from traditional, rural, conservative electorates.

COMMENT: The potential instability is created by the Independents having the balance of power, and whether their backing of a Gillard government brings stability or not will depend on how they act.

@Peter from fraser: You are correct in regard to Tasmania and the territories, but there are strict rules requiring all electorates in the other 5 States to always be within a very narrow band of numbers of electors. If they even start to look like they will in future get outside the band according to the Bureau of Census & Stats' population projections, redistribution/s in the affected States MUST occur along with increase/s reduction/s in the no of seats in each State as necessary.

Antony, I was wondering after what date would any new election have to be delayed for the proposed new Victorian electoral boundaries to be used?

COMMENT: You're not quite right on the enrolments. Redistributions are triggered either by the 7-year rule, or by a state's relative population (not enrolment) changing compared to other states and requiring the creation of abolition of a seat in the state. That is with the exception of Tasmania, which is guaranteed 5 seats. The rules for the two Territories can be changed, while the state ruels are entrenched in the Constitution.

The new electoral boundaries are due to be gazetted in December. An election before then will be on the old boundaries, after that on the new.

Do you have statistics on the average number of by-elections in each term of government, and what proportion are won by the Opposition of the day?

COMMENT: There have been 146 by-election in 42 parliaments, an average of 3.5 per term. Of those 146 by-elections, only 24 saw a seat lost by the government of the day.

Since 1970, less than one in ten by-elections have been caused by death of a member. The overwhelming majority of by-elections are caused by resignations. Given the numbers in the current Parliament, it seems unlikely that you would see a government MP retiring without a compelling reason.

Q: What conventions, if any, exist for filling casual senate vacancies in the event of the death or resignation of an independent senator?

COMMENT: It must be someone capable of withstanding a challenge in the High Court. So it would have to be someone who was either on the Independent's ticket when elected, or who in some other way is closely aligned in political views. If it was an Independent who died rather than was elected, then having the Independent nominate their own successor would be useful.

in the current environment, the prospect of a government bill passing the house over green opposition but then is rejected by the senate twice with the required three months in between and with other processing and scheduling andd house and senate debating delays makes a double dissolution trigger something for early 2013, if ever.

COMMENT: As I keep saying, the government's problem is the House, not the Senate. A bill opposed in the House by the Greens would probably need opposition support to pass, which makes it unlikely the opposition would turn around and then oppose the same bill in the Senate. After July next year, I can't see on the current numbers why a bill that had navigated its way through the House would then be defeated in the Senate. This Parliament will either go full term to a normal House and half-senate election, or dissolve early for a House only election.